Complainant is Trig Avionics Limited, United Kingdom (“UK”), represented by Adlex Solicitors, UK.
Respondent is Frank Patricia, Trig Avionics, Nigeria. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 1, 2021. On March 1, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On March 2, 2021, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 12, 2021. In accordance with the Rules, paragraph 5, the due date for Response was April 1, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 6, 2021. The Center appointed Jordan S. Weinstein as the sole panelist in this matter on April 19, 2021. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background Complainant designs and manufactures avionics products. It owns UK TradeMark Registration No. 3035420, dated December 18, 2013, for TRIG (Stylized) in International Class 9. The Disputed Domain Name was registered on January 22, 2021. 5. Parties’ Contentions A. Complainant Complainant asserts that it was incorporated on January 14, 2004 and has used the marks “Trig” and “Trig Avionics” in connection with designing and manufacturing avionics products and related support services for aircraft owners and operators since approximately 2004. Complainant asserts that it is a regulated and certified organization under the European Aviation Safety Agency, trading in over 42 countries worldwide with a global network of over 800 approved dealers. Complainant asserts that it is based in Edinburgh, UK, operates TRIG “Service Centres” in Europe, North America, and Australia, and has an additional European office in Amersfoort, Netherlands. Complainant estimates that between 15 to 20 percent of all the aircraft worldwide have one or more of Complainant’s products installed. Complainant asserts that it has operated its main website at “www.trig-avionics.com” since approximately 2004, and there have been more than 320,000 users of Complainant’s website from 2017 to 2021, with over 1.5 million page views. Complainant markets its products and services under its TRIG and TRIG AVIONICS marks at trade shows, by distribution of brochures, and by advertising in trade magazines and related publications, and has generated extensive press coverage. Complainant asserts that it has acquired a substantial reputation and goodwill in the names TRIG and TRIG AVIONICS by virtue of its extensive trading and marketing activities as outlined above, such that the marks are recognized by the public as distinctive of Complainant’s avionics products and services. Complainant asserts that the Disputed Domain Name was registered for use to commit an attempted fraud on Complainant and at least one of its dealer-customers. Complainant asserts that an email was sent by the fraudster on January 21, 2021, purportedly from Complainant’s CEO, to Balkan Aviation Ltd, one of Complainant’s authorized dealers. The “From” address of the email contained Complainant’s CEO’s full name but substituted the Disputed Domain Name for Complainant’s similar domain name (trig-avionics.com) in the email address. The email was purported to have been signed by Complainant’s CEO, listed Complainant’s full postal address, and reproduced its stylized, registered logo. Complainant asserts that its customer recognized the fraudulent nature of the email and brought it to Complainant’s attention, and Complainant reported the matter to the police and the National Cyber Security Agency. Complainant arranged for the content on the website linked to the Disputed Domain Name to be removed, for the linked website to be suspended by the registrar, and for the email accounts being used for the attempted fraud to be shut down. Complainant asserts that the email utilized a false email address incorporating the Disputed Domain Name, and copied Complainant’s stylized logo in order to impersonate Complainant’s CEO, and to encourage Complainant’s customer to engage with the fraudster, presumably in order to scam the customer or Complainant in some manner. Complainant asserts that the Disputed Domain Name is confusingly similar to Complainant’s TRIG AVIONICS mark, as it differs only by removing the pluralizing letter “s” from the word “avionic”, and adding the generic Top-Level domain (“gTLD”) “.com”, causing the potential for confusion with Complainant’s mark both visually and phonetically. Complainant asserts that the Disputed Domain Name is also confusingly similar to Complainant’s registered TRIG (Stylized) mark when the textual components of the mark are compared to the Disputed Domain Name; the addition of the descriptive term “avionic” failing to dispel the confusing similarity between the Disputed Domain Name and Complainant’s TRIG mark. Complainant asserts that its mark remains the dominant feature of the Disputed Domain Name. Complainant asserts that Respondent has no rights or legitimate interests in the Disputed Domain Name because Complainant has no association with Respondent and has never authorized or licensed Respondent to use its trademarks, because Respondent has used the Disputed Domain Name and Complainant’s mark and logo to impersonate Complainant and to attempt to defraud Complainant and its customer, because there is no evidence that Respondent has been commonly known by the name comprised in the Disputed Domain Name, and because Respondent’s only use of the Disputed Domain Name has been to impersonate Complainant and to defraud its customer. Complainant asserts that such usage was clearly not bona fide and cannot generate rights or legitimate interests. Complainant asserts that the Disputed Domain Name has been registered and used in bad faith because the Disputed Domain Name is part of a scheme by Respondent to impersonate Complainant and defraud its customers. Complainant asserts that Respondent had Complainant’s TRIG and TRIG AVIONICS marks in mind when registering and using the Disputed Domain Name as its registration is explicable only as a deliberate misspelling of Complainant’s TRIG mark and was used specifically to target Complainant and its customer. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Applicable Policy Provisions Paragraph 4(a) of the Policy requires Complainant to prove each of the following three elements in order to prevail in this proceeding: (i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and (iii) the Disputed Domain Name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy states that the following circumstances shall be evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that [Respondent has] registered or acquired the Disputed Domain Name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the Disputed Domain Name; or (ii) [Respondent has] registered the Disputed Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [Respondent has] engaged in a pattern of such conduct; or (iii) [Respondent has] registered the Disputed Domain Name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the Disputed Domain Name, [Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [its] website or other online location, by creating a likelihood of confusion with complainant’s trademarks as to the source, sponsorship, affiliation, or endorsement of [its] website or location or of a product or service on [its] website or location. These circumstances are non-exhaustive, and a UDRP panel may consider other circumstances as constituting registration and use of a domain name in bad faith. According to paragraph 4(c) of the Policy, a respondent may demonstrate rights in or legitimate interests to a domain name by any of the following, without limitation: “(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) you, as an individual, business, or other organization have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.” Where a respondent is in default, a UDRP panel may draw such inferences as it considers appropriate. Rules, paragraph 14(b). B. Findings 1. Identical or Confusingly Similar The Panel finds that the Disputed Domain Name Complainant has made a prima facie case under paragraph 4(a)(ii) of the Policy by showing that Complainant has no association with Respondent and has never authorized or licensed Respondent to use its mark; that Respondent has used the Disputed Domain Name and Complainant’s mark and logo to impersonate Complainant and to defraud Complainant and its customers; and that there is no evidence that Respondent has been commonly known by the name “Trig-avionic”. Once Complainant makes its prima facie case of no rights or legitimate interests, the burden of production shifts to Respondent to come forward with appropriate evidence demonstrating rights or legitimate interests in the Disputed Domain Name. See Adidas AG v. Domain Manager,WIPO Case No. D2014-1414,WIPO Overview 3.0, section 2.1. Respondent failed to come forward with allegations or evidence demonstrating either rights or legitimate interests in the Disputed Domain Name. The Panel notes that Respondent is listed as “Frank Patricia, Trig Avionics”, which could provide an inference that Respondent has been known by the name “Trig Avionics”. And although the email sent on behalf of Respondent to Complainant’s customer included the trade name “Trig Avionics”, it also included the name of Complainant’s CEO, Complainant’s postal address, and Complainant’s registered, stylized logo. Based on all the evidence, and the fact that the email was sent the same day the Disputed Domain Name was registered, the Panel draws the conclusion that Respondent registered the Disputed Domain Name under the false name “Trig Avionics” in order to further its fraud scheme. Respondent’s registration and use of the Disputed Domain Name in connection with a fraud scheme is not, and cannot create, rights or legitimate interests under the Policy. See CMA CGM v. Diana Smith,WIPO Case No. D2015-1774, WIPO Overview 3.0, section 2.13. As a result, the Panel finds that Complainant has established paragraph 4(a)(ii) of the Policy. 3. Registered and Used in Bad Faith The Panel finds that Complainant has provided sufficient evidence to satisfy paragraph 4(a)(iii) of the Policy, namely that Respondent has registered and used the Disputed Domain Name – which is the singular of Complainant’s TRIG AVIONICS mark – in bad faith. The facts that Respondent attempted to defraud a customer of Complainant using the Disputed Domain Name, and that Respondent committed its attempt on the same day Respondent registered the Disputed Domain Name prove that Respondent registered and used the Disputed Domain Name for a bad faith purpose. Moreover, Respondent’s email to Complainant’s customer included Complainant’s postal address and the name and title of Complainant’s CEO, and reproduced Complainant’s registered stylized mark in its entirety, further indicating that Respondent’s use of the Disputed Domain Name was intended to target Complainant in bad faith. The Panel finds that Complainant has established paragraph 4(a)(iii) of the Policy. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, Jordan S. Weinstein 1 Complainant contends it has common law rights in the term “Trig Avionics”. The Panel finds Complainant has shown that its mark TRIG AVIONICS has become a distinctive identifier, which consumers associate with Complainant’s goods and services. Accordingly, Complainant has established common law trademark rights in the mark TRIG AVIONICS for purposes of the Policy. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.3.
Sole Panelist
Date: April 26, 2021
Full & Egal Universal Law Academy